Monday, January 30, 2006

Great Article on Homeschooling

I liked this article by an English professor who homeschools, especially this part about the great amounts of wasted time in regular schools, as well as the destructive peer interactions that often take place in such settings:
In search of some reassurance, I have had many discussions with other professors who home school, primarily at my home institution but also with a number of faculty members in other parts of the country. From those conversations I have noticed a number of common motives, circumstances, and beliefs among faculty members who educate their children at home:
* * *

They value unstructured learning. Professors know how much time is lost by learning in an institutional setting. A large portion of the time spent in school is devoted to moving students around, dealing with disruptions, health problems, different amounts of preparation, and unequal rates of learning. Without all the crowd control and level seeking, the formal requirements of education can be completed in only a few hours a day, leaving lots of time for self-directed learning and play. As a result, home-schooled children generally learn faster and with less boredom and less justified resentment.

They see the results of public education. Every professor seems to complain that most high-school graduates are not really prepared for college, either academically or emotionally. More and more, our energies are devoted to remedial teaching and therapeutic counseling. Most believe that something is wrong in public education, or the larger culture, that can only be dealt with, in part, by selective withdrawal. Home-schooled students are not always perfect, but they seem more respectful, attentive, mature, and academically prepared than their peers. And they do not automatically perceive teachers as “the enemy” out of peer solidarity.

They privilege the family over peer groups. Professors often celebrate diversity as a value in education, and, among those who home school, many mention the value for their children of cross-generational experiences instead of identifying only with a peer group. In large families, children also benefit from teaching their younger siblings, who are generally eager to keep up. Home-schooled students are less likely to become alienated from their families as a result of antisocial, anti-intellectual peer conformity. They develop a set of values that enable them to resist the negative socialization that outweighs, by far, the benefits of segregation by age.

They have negative memories of their own education. Although it takes some probing, nearly every professor with home-schooled children mentions traumatic childhood experiences in school. Professors, as a group, tend to have been sensitive, intelligent children who were picked on and ostracized. They foresee the same treatment for their own children, and they want to do everything they can to prevent the children from experiencing the traumas they experienced. Professors recognize how many of our most brilliant students have been emotionally or physically terrorized for a dozen years before they arrive at college. School sometimes teaches otherwise happy and intelligent children to become sullen and secretive and contemptuous of learning.

It is hard to overemphasize this last point as a motive for home schoolers. In my own memory, the difficulty of school was never the work; it was surviving the day without being victimized by students whose violence was beyond the capacity or desire of adults to control. My spouse remembers the cruelty of girls in cliques, who can be even more cunning at the infliction of pain and permanent emotional scarring than any of the boys who sometimes sent me home with torn clothes and a bloody nose.


Sunday, January 29, 2006

Palace Revolt - Newsweek Politics -

A very interesting story:
In the summer of 2004, Goldsmith, 43, had left his post in George W. Bush's Washington to become a professor at Harvard Law School. Stocky, rumpled, genial, though possessing an enormous intellect, Goldsmith is known for his lack of pretense; he rarely talks about his time in government. In liberal Cambridge, Mass., he was at first snubbed in the community and mocked as an atrocity-abetting war criminal by his more knee-jerk colleagues. ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson.

They had no idea. Goldsmith was actually the opposite of what his detractors imagined. For nine months, from October 2003 to June 2004, he had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers. Their insurrection, described to NEWSWEEK by current and former administration officials who did not wish to be identified discussing confidential deliberations, is one of the most significant and intriguing untold stories of the war on terror.
Also of interest is the portrayal of John Ashcroft, which doesn't quite fit with the typical stereotype.

Wednesday, January 25, 2006

New National Police?

A lot of conspiracy theorists are upset over claims that there's going to be a "new" national police force. As Paul Craig Roberts says:
A provision in the "PATRIOT Act" creates a new federal police force with the power to violate the Bill of Rights. You might think that this cannot be true, as you have not read about it in newspapers or heard it discussed by talking heads on TV.

Go to House Report 109-333 USA PATRIOT Improvement and Reauthorization Act of 2005 and check it out for yourself. Section 605 reads:

"There is hereby created and established a permanent police force, to be known as the 'United States Secret Service Uniformed Division.'"

This new federal police force is "subject to the supervision of the Secretary of Homeland Security."

The new police are empowered to "make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony."

The new police are assigned a variety of jurisdictions, including "an event designated under section 3056(e) of title 18 as a special event of national significance" (SENS).

"A special event of national significance" is neither defined nor does it require the presence of a "protected person" such as the president in order to trigger it. Thus, the administration, and perhaps the police themselves, can place the SENS designation on any event. Once a SENS designation is placed on an event, the new federal police are empowered to keep out and arrest people at their discretion.

The language conveys enormous discretionary and arbitrary powers. What is "an offense against the United States"? What are "reasonable grounds"?

You can bet the Alito/Roberts court will rule that it is whatever the executive branch says.

The obvious purpose of the act is to prevent demonstrations at Bush/Cheney events. However, nothing in the language limits the police powers from being used only in this way. Like every law in the U.S., this law also will be expansively interpreted and abused. It has dire implications for freedom of association and First Amendment rights. We can take for granted that the new federal police will be used to suppress dissent and to break up opposition. The Brownshirts are now arming themselves with a Gestapo.
One reason that newspapers haven't reported on this new national "Gestapo" is that newspapers generally expect at least a minimal amount of fact-checking. Consider the following points:

1. The Secret Service Uniformed Division is not new at all. It has existed in some form since 1860, and has used its current name since 1977.

2. In fact, the "new" 18 U.S.C. 3056A is very similar to the current 3 U.S.C. 202, which also states that it creates a "permanent police force," calls it the "Secret Service Uniformed Division," makes it subject to the "Department of Homeland Security," etc.

3. What then is the point of the "new" 18 U.S.C. 3056A? According to the Joint Explanatory Statement of the Committee of Conference:
This section places all authorities of the Uniformed Division, which are currently authorized under title 3, in a newly created 18 U.S.C. § 3056A, following the core authorizing statute of the Secret Service (18 U.S.C. § 3056), thereby organizing the Uniformed Division under title 18 of the United States Code with other Federal law enforcement agencies.
In other words, Congress is basically reorganizing the United States Code. i.e., taking one statute that governs the Secret Service, and putting it next to another statute that governs the Secret Service as well. This does NOT mean that Congress has now created a "new federal police force."

4. What about the provision that authorizes the Secret Service to: "make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony"?

Actually, this statutory authority is word-for-word the same as the authority that is already given to Secret Service agents under 18 U.S.C. 3056(c)(1)(C). And even the most elementary legal research would have revealed that the exact same authority is given to a wide variety of federal agents, including FBI agents (18 U.S.C. 3052), special agents of the Department of State (22 U.S.C. 2709), United States marshalls (18 U.S.C. 3053), ATF agents (18 U.S.C. 3051), and even Post Office Inspectors (18 U.S.C. 3061). It is rather startling that Roberts (or his followers) could claim that this statutory authority is something "new," much less akin to the "Gestapo."

Besides, consider the alternative: Without this authority, the FBI or Secret Service wouldn't be able to arrest someone who committed murder right in front of their eyes.

5. What about "special events of national significance," of which Roberts makes so much? These "special events" are already covered by the existing 18 U.S.C. 3056. This statute provides that the Secret Service can collaborate with the Dept. of Homeland Security to plan and implement "security operations" at special events, which would presumably include political conventions, state dinners, and the like. Then, every fiscal year, the President is required to "report to the Congress -- (A) what events, if any, were designated special events of national significance for security purposes under paragraph (1); and (B) the criteria and information used in making each designation." 18 U.S.C. 3056(e)(2).

Again, consider the alternative: Without this already-existing statute, the Secret Service wouldn't have explicit authority to coordinate security activities with the Dept. of Homeland Security at a speech by a visiting head of state, etc.

6. Needless to say, the reference to the "Alito/Roberts Court" is just scaremongering.

UPDATE: It looks like there are a couple of provisions in the law that do extend -- rather modestly, it seems to me -- the applicability of "special events of national significance" and the penalties for breaching security at such events. There may be good reasons to be concerned about the expansion of authority here, but that in no way detracts from my overall point that the Secret Service is not a "new" national police force merely because its governing statute has been relabeled.

Friday, January 20, 2006

The Ayotte case

The Supreme Court just issued its decision in Ayotte v. Planned Parenthood. It was a rare unanimous abortion decision that avoided the merits of the question presented (i.e., whether NH could require parental notification with no health exception). Instead, the Court focused on the appropriate remedy for a constitutional violation. I think this is much more significant than would have been a ruling on the merits, as the Court's holding will affect all sorts of cases -- not just the narrow question of what sorts of parental notification statutes are permissible. More on that below.

Here's what the Court did, pared down to its essentials:
Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force . . .

It is axiomatic that a “statute may be invalid as applied to one state of facts and yet valid as applied to another.” Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289 (1921). Accordingly, the “normal rule” is that “partial, rather than facial, invalidation is the required course,” such that a “statute may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact.”

* * *

In this case, the courts below chose the most blunt remedy–permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely. . . . In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale. . . . Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional application.

What is particularly interesting is the Court's reference to what happened in Stenberg v. Carhart, the 2000 decision over a Nebraska partial-birth abortion statute:
That is understandable, for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw. In Stenberg, we addressed a Nebraska law banning so-called “partial birth abortion” unless the procedure was necessary to save the pregnant woman’s life. We held Nebraska’s law unconstitutional because it lacked a health exception. 530 U.S., at 930 (lack of a health exception was an “independent reaso[n]” for finding the ban unconstitutional). But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn.
This was artfully phrased. The parties in Stenberg did not ask for more finely drawn relief, but an amicus brief filed by Feminists for Life did.

I know this because some classmates and I contributed a portion of that brief that specifically told the Court it should grant "more finely drawn" relief. We argued that “[b]oth the district court and the court of appeals possessed the authority to make the Attorney General’s interpretation binding upon all the parties by enjoining them from enforcing the statute against D&E abortions,” and that “by accepting the proffered narrowing interpretation and declaring that any broader interpretation would be unconstitutional, this Court can prevent arbitrary enforcement.”

Then, as we were sufficiently intrigued to explore the issue further, one of the classmates (Mark Rienzi) and I wrote a lengthy law review article, which appeared in the Utah Law Review in 2002. Our whole point was to argue that federal courts can grant limited injunctions that narrow the scope of a statute.

Mark and I believed that, far from arguing for any novel powers here, we were simply pointing out that federal courts had always had the power to limit the scope of state statutes. At the same time, many federal courts seemed to have forgotten that they could do this. Instead, in many cases, federal courts seemed to assume that it was an all-or-nothing proposition. Either they could strike down the statute entirely, or else they would have to let the whole thing stand.

We thought that this was a false dilemma, because federal courts had always been able to craft a remedy that was in between those two extremes. In traditional "as-applied" adjudication, for example, federal courts have the power to hold that a statute is unconstitutional "as applied" to one or a few circumstances, but not elsewhere. As we pointed out -- and as the Supreme Court finally agreed in Ayotte -- there's nothing to stop a federal court from using that exact same approach even when the plaintiffs say that they're bringing a "facial" challenge (i.e., that they're looking to strike down the law as a whole).

Why is this ruling more important than a merits ruling on parental consent? Well, as Ed Whelan correctly notes, the Court's reasoning in Ayotte is inherently inconsistent with the undue burden standard that was used in Planned Parenthood v. Casey. After all, under Ayotte, if there is any undue burden in sight, the court should try to craft an injunction that reaches those particular circumstances, rather than striking down the entire statutory provision (as Casey did). And the Supreme Court's partial-birth abortion case -- Stenberg v. Carhart -- would definitely have come out differently under the Ayotte standard. Indeed, as noted above, the Court virtually admits this when it points out that no party asked for, and the Court didn't consider, the possibility of more limited relief in that case.

Moreover, there have been dozens of cases over the past decade in which courts have applied the exact same kind of reasoning that the Court struck down in Ayotte. In virtually all of those cases, the end result was an injunction completely invalidating a statute, even though some constitutional applications existed. Ayotte opens the door for state attorneys general to go back to those courts and say that the Supreme Court has stated -- unanimously -- that their all-or-nothing approach is too blunt, and that they need to craft a narrower injunction to allow for at least those applications of the law that are constitutional. The result could be that abortion restrictions across the country -- including those dealing with partial birth abortion, informed consent, parental notification, waiting periods, spousal notification, etc. -- might be brought partially back to life by Ayotte's requirement of "relief more finely drawn."

All the news outlets are calling Ayotte a dodge. But it may turn out to be the biggest abortion decision since Roe itself.

Thursday, January 19, 2006


A very troubling post about euthanasia.

Two intriguing policy ideas: Here and here.

Saturday, January 14, 2006

Clinton Signing Statement

Here's an interesting example of a presidential signing statement that declines to enforce part of the law in question. It's from President Clinton, on signing the Telecommunications Act of 1996:
I do object to the provision in the Act concerning the transmittal of abortion-related speech and information. Current law, 18 U.S.C. 1462, prohibits transmittal of this information by certain means, and the Act would extend that law to cover transmittal by interactive computer services. The Department of Justice has advised me of its long-standing policy that this and related abortion provisions in current law are unconstitutional and will not be enforced because they violate the First Amendment. The Department has reviewed this provision of S. 652 and advises me that it provides no basis for altering that policy. Therefore, the Department will continue to decline to enforce that provision of current law, amended by this legislation, as applied to abortion-related speech.

Thursday, January 12, 2006


The Edge (the organization, not the U2 guitarist) asks a bunch of people what is their most "dangerous idea." I was intrigued by this one by Roger Schank:
No More Teacher's Dirty Looks

After a natural disaster, the newscasters eventually excitedly announce that school is finally open so no matter what else is terrible where they live, the kids are going to school. I always feel sorry for the poor kids.

My dangerous idea is one that most people immediately reject without giving it serious thought: school is bad for kids — it makes them unhappy and as tests show — they don't learn much.

When you listen to children talk about school you easily discover what they are thinking about in school: who likes them, who is being mean to them, how to improve their social ranking, how to get the teacher to treat them well and give them good grades.

Schools are structured today in much the same way as they have been for hundreds of years. And for hundreds of years philosophers and others have pointed out that school is really a bad idea:
We are shut up in schools and college recitation rooms for ten or fifteen years, and come out at last with a belly full of words and do not know a thing. — Ralph Waldo Emerson

Education is an admirable thing, but it is well to remember from time to time that nothing that is worth knowing can be taught. — Oscar Wilde
Schools should simply cease to exist as we know them. The Government needs to get out of the education business and stop thinking it knows what children should know and then testing them constantly to see if they regurgitate whatever they have just been spoon fed.

The Government is and always has been the problem in education:
If the government would make up its mind to require for every child a good education, it might save itself the trouble of providing one. It might leave to parents to obtain the education where and how they pleased, and content itself with helping to pay the school fees of the poorer classes of children, and defraying the entire school expenses of those who have no one else to pay for them. — JS Mill
* * *

Over a million students have opted out of the existing school system and are now being home schooled. The problem is that the states regulate home schooling and home schooling still looks an awful lot like school.

We need to stop producing a nation of stressed out students who learn how to please the teacher instead of pleasing themselves. We need to produce adults who love learning, not adults who avoid all learning because it reminds them of the horrors of school. We need to stop thinking that all children need to learn the same stuff. We need to create adults who can think for themselves and are not convinced about how to understand complex situations in simplistic terms that can be rendered in a sound bite.

Just call school off. Turn them all into apartment houses.
But then who would babysit the nation's children on weekdays (the most important function of schools)?


Tuesday, January 10, 2006

Barr on Signing Statements

Former Attorney General William Barr made the following observation in a speech at Cardozo Law School in 1992:
The use of signing statements to say that agencies should refuse to enforce part of a law because it is unconstitutional has been extremely controversial. Our position, or my position when I was at the Office of Legal Counsel, was that the President could use signing statements in that way where the law encroached on executive authority. For example, a 1990 foreign relations bill had a provision forbidding spending funds on sending a delegation to a negotiating session, unless the delegation included members of the (Congress-controlled) Commission on Security and Cooperation in Europe. Essentially, Congress tried to control the President's appointment power by forcing him to appoint members of a legislative entity to a diplomatic delegation. In our view, that was a clearly unconstitutional encroachment on the President's appointment authority as well as on his authority to administer the foreign relations of the United States. Since the bill contained all of our foreign relations money, we said that the President could sign the bill and at the same time announce that the provision would not be enforced. In fact, that is what was done, and no legislative members were appointed. We said that the power to decline to enforce the law flows from the Take Care Clause - "take Care that the Laws be faithfully executed ...." The Constitution is the law. If the President is confronted with a circumstance where the Constitution says one thing and a statute says another, the President or the Attorney General has to choose the supreme law of the land. Particularly where a law encroaches on executive power, the only effective way of challenging the law is by declining to enforce it. Otherwise, the President would be at the mercy of Congress. The only reference to this issue at the Constitutional Convention was by James Wilson, who said that one of the President's defenses to encroachments on presidential power is the President's refusal to execute those unconstitutional parts of the law.

Many Universes

Tom Smith has a good observation:
A type of intelligent design that has some physicists and cosmologists worried is the idea that the cosmological constant appears to be very finely tuned so that the universe can have life in it. . . . [T]his is awkward if you really hate the idea of a universe that looks like it was built for us. So what to do?

. . . It looks like string theory may have a very, very large number of solutions, on the order of ten to the 500th power large, and so there would be that many universes. Each of these universes would have different physical laws. This would allow you to say, our universe has not been designed, it just so happens we live in one of the universes, perhaps the only one, where beings like us, 3D carbon based beings, could live. So life is an accident after all! We are just very lucky, that's all.

* * *

This is so confused, as the saying goes, it is not even wrong. It is not evidence that there exist a practically infinite number of universes, that the universe we can observe appears to be very special, or at least hospitable to us. If the only color you can see is red, and you come across a red car, this is not evidence that there must exist cars in a nearly infinite variety of colors, for otherwise it would be highly unlikely you would come across just the sort of car you can see. That is a very strange way of looking at things. It seems just as sensible to think that cars are red or that you just got lucky. Or perhaps even that someone bought a car just for you, though that hypothesis is hardly proven, it is at least as likely as the many cars hypothesis. These physicists need to get a grip on the concept of evidence. Maybe they should go to law school.

Monday, January 09, 2006

Alito on Presidential Power

It's too bad that some Democratic Senators feel they have to lie about Alito's record.

UPDATE: Here's a very long post analyzing Alito's memo on presidential signing statements.

Presidential Power

Here's an interesting law review article by professor Dawn Johnsen, who analyzes the ways in which Presidents can enforce their own constitutional views. Notice that she argues that Presidents may sometimes be obligated to refuse to be bound by congressional restrictions on presidential authority:
3. Statutes that Encroach on Executive Authority. The Dellinger Memorandum describes the President's non-enforcement authority as greatly enhanced when the law encroaches on the constitutional powers of the presidency: "Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment."168 The Dellinger position is consistent with past executive branch policy and practice.169

The executive branch typically has justified enhanced non-enforcement authority when the President's powers are threatened as necessary to self-defense, and, in turn, preservation of the constitutional balance of powers. The 1980 Civiletti Memorandum describes this rationale well: "[T]he Executive can rarely defy an Act of Congress without upsetting the equilibrium established within our constitutional system; but if that equilibrium has already been placed [*pg 51] in jeopardy by the Act of Congress itself, the case is much more likely to fall within that narrow class."170

Some commentators have countered that it is precisely when Presidents are protecting their own powers that we should be most suspicious of their constitutional analysis, and that Presidents perhaps should be less free to disregard laws they believe threaten presidential power than laws they believe violate individual rights.171 Allowing the President to resolve disputes with Congress over their respective constitutional powers by refusing to enforce laws does create the opportunity for self-interest inappropriately to taint constitutional analysis. The alternative, though, of requiring Presidents invariably to comply with laws that aggrandize Congress's power at the expense of presidential power would pose too great a threat to our constitutional equilibrium. Given the nature of legislative encroachments on executive power, if Presidents consistently were to comply with such laws, the courts would not provide a sufficient check to protect the constitutional balance of powers. Steady compliance likely would produce a steady erosion of presidential power.

While this final non-enforcement factor endorsed by the executive branch is the most controversial, the fact that a provision encroaches on presidential power rarely, if ever, should be determinative. On closer scrutiny, what appear to be reasons for giving the President greater authority to refuse to enforce laws that threaten presidential powers may be better viewed as applications of other relevant and less controversial considerations -- namely, justiciability, presidential expertise, the magnitude of the constitutional harm, and the degree of congressional attention to the constitutional issue.

A principal reason courts may inadequately protect against congressional encroachments on presidential authority is that presidential compliance with such statutes is particularly likely to deprive the courts of any opportunity for review. Presidential compliance with the Tenure of Office Act and its successors, for example, would have allowed the Senate unconstitutional control over the President's ability to remove officers, with no possibility of judicial review. By contrast, where presidential non-enforcement would render the issue nonjusticiable, compliance may be the constitutionally preferred course, even when the subject matter is one of presidential power. For example, it was only by complying with the legislative veto at issue in Chadha172 that the President created the opportunity for the Supreme Court to consider its constitutionality.

In addition, many types of legislative encroachments are unlikely ever to present a justiciable case or controversy that would allow for judicial review, or will be subject only to an extremely deferential review. A greater need for a [*pg 52] presidential check exists, for example, when Congress seeks to encroach on the President's authority as commander in chief or other foreign affairs powers. The Dellinger Memorandum recognizes that provisions that diminish presidential power often are not justiciable or only will be justiciable if the President declines to enforce them.173 The President also typically has special expertise relevant to assessing the constitutionality of legislative encroachments on presidential power. Non-enforcement therefore more often will be the constitutionally preferred course for laws that interfere with the President's foreign affairs powers, than, for example, for laws that the President believes violate individual rights, other factors being equal.

Finally, in considering the harm imposed by a law that diminishes presidential power, Presidents should consider not their interests narrowly defined, but the long-term effects on the institution of the presidency. Overly zealous non-enforcement is not the only danger. In some instances, Presidents may be reluctant to provoke a confrontation with Congress to prevent what, viewed narrowly, seems a relatively minor encroachment. Presidents confronted with laws they believe unconstitutionally impair presidential power should consider their obligation to preserve the constitutional powers of the presidency and pass the office on to their successors unimpaired.

Sunday, January 08, 2006

More on Signing Statements

Robert Kuttner:
Last week, signing a bill banning torture in interrogations that was forced on him by senior Republican senators, Bush asserted a concept never imagined by the Constitution's framers or permitted by any court -- a ''signing statement" claiming his right to interpret a law in his own fashion and to disregard aspects of it that he doesn't like.

It takes an independent judiciary to balance needs of liberty against claims of executive power in national emergencies. But Alito's views of the imperial presidency are almost perfectly in sync with Bush's.
All of the above is exaggerated or untrue.

Saturday, January 07, 2006

Alito on Presidential Power

The New York Times has an editorial on Alito, part of which reads:
PRESIDENTIAL POWER The continuing domestic wiretapping scandal shows that the Bush administration has a dangerous view of its own powers, and the Supreme Court is the most important check on such excesses. But Judge Alito has some disturbing views about handing the president even more power. He has argued that courts interpreting statutes should consider the president's intent when he signed the law to be just as important as Congress's intent in writing and passing the law. It is a radical suggestion that indicates he has an imperial view of presidential power.
This is quite unfair. Alito's suggestion that courts consider the intent of the President when interpreting a statute was by no means "radical," as can be seen by many historical examples (i.e., the Supreme Court's acknowledgment of Roosevelt's intent).

Even worse is the phrase "imperial view of presidential power." All that Alito said was that the President's intent in signing a bill into law ought to be as relevant as the legislature's intent -- when the law is being construed by a court. This necessarily means that the President is submitting to the authority of a court on a particular question of statutory interpretation. There is nothing "imperial" whatsoever about Alito's view.

If you want to see someone arguing for the proposition that Presidents should ignore limits on their constitutional powers -- which is what the Times insinuates -- you're not going to find any support from Alito. Instead, you'd have to look at the Office of Legal Counsel memo that Clinton solicited (discussed in my post below).

Friday, January 06, 2006


Two very good posts:

Baseball Crank, on a troublesome Florida Supreme Court decision striking down Florida's voucher program.

Daniel Macintyre, debunking an NEA article arguing that homeschoolers are mere amateurs.

Wednesday, January 04, 2006

Alito on Presidential Signing Statements

An article in the Washington Post describes an idea that Samuel Alito had when working for the Reagan administration:
As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch.

In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

* * *

"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

The Reagan administration popularized the use of such statements and subsequent administrations continued the practice. (The courts have yet to give them much weight, though.)

President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon.
The Alito memo can be found here.

The Post is very misleading in giving the impression that Alito was the first person to "outline[] a strategy" for having Presidents issue signing statements. An academic article by Christopher Kelley offers examples starting with Monroe, and continuing through Jackson, Roosevelt, Truman, and Carter.

For example, one 1978 budgetary law included an amendment that prohibited "the use of funds under this Act to carry out [President Carter's] amnesty program" for Vietnam draft resisters. When Carter signed the law, he stated that he objected to the amendment "because it interfered with his pardon power, was an unconstitutional bill of attainder, and denied due process of the law." And as it turned out, "the Carter administration ignored the amendment and processed all of the [amnesty] applications." This decision was unreviewable in court, because no one had standing to complain.

Another good example is Roosevelt's statement on signing the Emergency Price Control Act of 1942:
Roosevelt objected to a section of the bill that was a 'protectionist measure for farmers' in the United States. Roosevelt stated: " . . . there is nothing contained therein which can be construed as a limitation upon the existing powers of governmental agencies . . . ." Roosevelt further demanded that the provision be removed and if the Congress did not remove it, he would treat it as a nullity. Roosevelt had solicited and received advice from the Dean of the Oregon Law School regarding what powers were afforded him during a time of war, particularly what rights did he have to ignore sections of laws he determined interfered with the war error. The Dean told him that "if you decide that a certain course of action is essential as a war measure, it supersedes congressional action."
Some might say that while previous Presidents issued signing statements (including some that indicated an intent to ignore the law in question), no one before Alito had thought that such signing statements should be used by courts when construing the law. But that's not true either: In United States v. Lovett, 328 U.S. 303 (1946), Congress included a provision in an appropriations act specifically naming three federal employees who should not be paid any further salaries, due to their "subversive activities." The Supreme Court held that the law was unconstitutional, and in so doing, cited President Roosevelt's signing statement: "The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional."

The Post is also coy in referring to the practice of "subsequent administrations." Clinton actually used presidential signing statements (105 times) more often than Reagan (71 times), who is credited by the Post with having "popularized" the practice. Here's a summary from the Kelley article:
Even though President Clinton was blessed with unified party control when he came to office, his staff in the OLC early on was busy defending unique presidential powers, particularly the signing statement. * * *

In using the constitutional signing statement, Clinton was similar to the Bush administration in issuing most in the area of foreign policy (52%), precisely where presidential power is at its zenith. But even where the power of the presidency is clearest, President Clinton was still willing to use the constitutional signing statement from the high profile to the mundane, often to achieve what could not be achieved after veto bargaining had taken place. And like the Bush administration, President Clinton in at least three separate instances asked the OLC to issue opinions either buttressing the president's authority to decline to enforce provisions of a statute or to direct inferior officers on how to implement the terms of a constitutional signing statement . . . .

For the Clinton administration, the signing statement was an important cornerstone of presidential power, as outlined by Walter Dellinger in his 1993 OLC memo. It would become particularly important after the 1994 midterm elections when the Congress became Republican and more polarized.
The Kelley article also points out that Walter Dellinger wrote the following in a very interesting memo to Clinton's counsel Abner Mikva:
The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment. If the President does not challenge such provisions (i.e., by refusing to execute them), there often will be no occasion for judicial consideration of their constitutionality; a policy of consistent Presidential enforcement of statutes limiting his power thus would deny the Supreme Court the opportunity to review the limitations and thereby would allow for unconstitutional restrictions on the President's authority.

Some legislative encroachments on executive authority, however, will not be justiciable or are for other reasons unlikely to be resolved in court. If resolution in the courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President's authority as Commander in Chief. Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.

* * * [Discussion of the Supreme Court's Myers decision]

The Court in Myers can be seen to have implicitly vindicated the view that the President may refuse to comply with a statute that limits his constitutional powers if he believes it is unconstitutional.
Wow. I wonder what Dellinger thinks of the notion that President Bush can ignore FISA if he believes that it unconstitutionally limits his powers to defend the country.

Finally, the Post is not quite accurate in stating that the "courts have yet to give them [signing statements] much weight." Besides the United States v. Lovett decision discussed above, Walter Dellinger's first Office of Legal Counsel memo, as requested by the Clinton administration, pointed out several other examples:
It may therefore be appropriate for the President, when signing legislation, to explain what his (and Congress's) intention was in making the legislation law, particularly if the Administration has played a significant part in moving the legislation through Congress. And in fact several courts of appeals have relied on signing statements when construing legislation. See United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) ("though in some circumstances there is room for doubt as to the weight to be accorded a presidential signing statement in illuminating congressional intent, . . . President Reagan's views are significant here because the Executive Branch participated in the negotiation of the compromise legislation."); Berry v. Dep't of Justice, 733 F.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson's signing statement on goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman's description in signing statement of proper legal standard to be used in Portal-to-Portal Act).
Of course, it might be the case that few decisions have even raised the issue of presidential signing statements; or that other decisions have actually held that such statements are irrelevant. I wonder if the Washington Post journalists have any idea.

* * *

Addressing the Alito memo, Texas law professor Sandy Levinson writes:
[W]hat should courts do when faced with conflicting legislative and executive understandings, assuming that one doesn't ignore both a la Scalia. The answer, presumably, is to give priority to the President. If that's not what Alito means, it's hard to figure out exactly what he does mean to say. If one combines this rule with a version of James Bradley Thayer's "clear mistake rule" for exercising judicial review over presidential actions, then this is clearly a go-ahead for a basically unfettered President.
There are two things that are wrong with this analysis. First, Levinson does not specify why he thinks Alito believes in Thayer's "clear mistake rule" as to presidential interpretive statements. Second, now that we can read the memo for ourselves, there's no need to speculate about what Alito "presumably" meant. Alito never argued that one should give "priority" to the President. Quite the contrary. His memo listed five "primary obstacles" to the use of presidential signing statements, and the most significant was number 5:
Because presidential intent has been all but ignored in interpreting the meaning of statutes, the theoretical problems have not been explored. For example: In general, is presidential intent entitled to the same weight as legislative intent or is it of much less significance? . . . What happens when there is a clear conflict between the congressional and presidential understanding? Whose intent controls?
Alito was posing those questions, not answering them. And notably, later in the memo, Alito recommends, "We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress."

* * *

A lot of bloggers appear to think that it is obviously wrong -- too obvious to need an argument -- for a court to give any weight to the statutory interpretation offered by a President. The closest thing that I've seen to an argument is this blogger's point that the Constitution grants all "legislative power" to Congress, and the President can do nothing other than say yes or no.

Well, that's rather unconvincing. The President may not have "legislative" power, but he has the final word on whether a bill becomes law. So one might, with equal plausibility, say that because the President has the final word, the only thing that matters is not congressional intent, but what the President thought he was signing.

Imagine a situation that is something like this: The President vetoes or threatens to veto a bill, after which Congress rewrites it to conform to the President's desires. Then the President signs it along with a statement that reads something like this, "I believe this bill to have been rewritten so that it accomplishes X [or so that it doesn't ban Y, etc.]. On that interpretation, I hereby sign this bill."

Then, if the question arose in court as to whether the law accomplished X [or banned Y, etc.], why wouldn't that signing statement be as enlightening as any other item from the legislative history? If not for the President's interpretation, as set out in the signing statement, that bill would never have become law in the first place.

For some concrete examples, why wouldn't the following presidential signing statements be relevant to indicate what the President thought he was signing?

Andrew Jackson, on May 30, 1830:
Gentlemen: I have approved and signed the bill entitled "An act making appropriations for examinations and surveys, and also for certain works of internal improvement," but as the phraseology of the section which appropriates the sum of $8,000 for the road from Detroit to Chicago may be construed to authorize the application of the appropriation for the continuance of the road beyond the limits of the Territory of Michigan, I desire to be understood as having approved this bill with the understanding that the road authorized by this section is not to be extended beyond the limits of the said Territory.
Well, ok, that one is not over a monumental issue, but it is generally viewed as one of the first of the genre.

Here's a more important one: On signing the Antiterrorism and Effective Death Penalty Act of 1996, Clinton issued a signing statement that contained a lengthy section on how the courts should interpret various provisions of that bill:
Some have expressed the concern that two provisions of this important bill could be interpreted in a manner that would undercut meaningful Federal habeas corpus review. I have signed this bill because I am confident that the Federal courts will interpret these provisions to preserve independent review of Federal legal claims and the bedrock constitutional principle of an independent judiciary.

Section 104(3) provides that a Federal district court may not issue a writ of habeas corpus with respect to any claim adjudicated on the merits in State court unless the decision reached was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Some have suggested that this provision will limit the authority of the Federal courts to bring their own independent judgment to bear on questions of law and mixed questions of law and fact that come before them on habeas corpus.

In the great 1803 case of Marbury v. Madison, Chief Justice John Marshall explained for the Supreme Court that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Section 104(3) would be subject to serious constitutional challenge if it were read to preclude the Federal courts from making an independent determination about "what the law is" in cases within their jurisdiction. I expect that the courts, following their usual practice of construing ambiguous statutes to avoid constitutional problems, will read section 104 to permit independent Federal court review of constitutional claims based on the Supreme Court's interpretation of the Constitution and Federal laws.

Section 104(4) limits evidentiary hearings in Federal habeas corpus cases when "the applicant has failed to develop the factual basis of a claim in State court proceedings." If this provision were read to deny litigants a meaningful opportunity to prove the facts necessary to vindicate Federal rights, it would raise serious constitutional questions. I do not read it that way. The provision applies to situations in which "the applicant has failed to develop the factual basis" of his or her claim. Therefore, section 104(4) is not triggered when some factor that is not fairly attributable to the applicant prevented evidence from being developed in State court.

Preserving the Federal courts' authority to hear evidence and decide questions of law has implications that go far beyond the issue of prisoners' rights. Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent Federal courts have the power "to say what the law is" and to apply the law to the cases before them. I have signed this bill on the understanding that the courts can and will interpret these provisions of section 104 in accordance with this ideal.
If a President signs a bill on the understanding that it has a particular meaning, why isn't that at least as relevant as the fact that a congressional report contains a few citations that were inserted by a congressional staffer and that no one else (in all likelihood) ever read? (That's what Scalia was complaining about in this opinion.)